RICHMOND (AP) — A recently declassified government memo that was rescinded nine months after it was written shows that President Bush acted on a flawed legal analysis when he designated Ali al-Marri an enemy combatant, a lawyer for the imprisoned man says in a new court filing.
Al-Marri, a legal U.S. resident from Qatar, has been held in the Navy brig in Charleston, S.C., since June 2003. The 4th U.S. Circuit Court of Appeals is considering whether the government has the right to detain al-Marri, whom the government claims had links to al-Qaeda terrorists and was a national security threat.
A three-judge panel of the court ruled in al-Marri’s favor last June, and the full court reheard the case in October. Al-Marri’s attorney, Jonathan Hafetz of the Brennan Center for Justice in New York, told the court in a supplemental letter yesterday that the Justice Department memo “further demonstrates that al-Marri’s detention lacks legal basis.”
The memo, dated March 14, 2003, was written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel. The 81-page document defends the use of harsh interrogation tactics against terror suspects and says the president has broad, unfettered wartime power as commander in chief.
Hafetz said in his letter to the appeals court that the memo incorrectly asserts that constitutional protections do not impede domestic military operations and the detention and interrogation of terror suspects inside the U.S.
The memo was sent to the Pentagon’s top lawyer three months before al-Marri was declared an enemy combatant and was rescinded in December 2003, six months after al-Marri was detained. Hafetz said the memo was part of what government lawyers described as an “extremely careful” process for determining an enemy combatant designation.
“In sum, the President designated al-Marri an ’enemy combatant’ based upon an erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated,” Hafetz wrote.
Hafetz said in a telephone interview today that the withdrawn memo would have been a topic for his oral arguments to the full court had it been made public at the time. The document was released last week as part of an American Civil Liberties Union lawsuit to force the administration to turn over documents about what the Bush administration calls its war on terror.
The Justice Department did not immediately respond to a telephone and e-mail request for comment.
Al-Marri was arrested in December 2001 at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11 terrorist attacks to study for a master’s degree at Bradley University.
The government says federal agents found evidence that al-Marri, who was charged with credit-card fraud, had links to al-Qaeda terrorists and was a national security threat. Authorities shifted al-Marri’s case from the criminal system and moved him to indefinite military detention.
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